McConnell Admits President Could Pull Off Recess Appointments

As is typical at the end of the year, Harry Reid attempted to clear out a backlog of uncontroversial Presidential appointments before the holiday break. But Mitch McConnell would not allow it. He wanted assurances, instead, that the President would not seek out any recess appointments during the break, and he objected to moving the outstanding nominees until that time.

“We are ready and willing to move forward, by consent, with a package of nominations to positions in both the executive and judicial branches,” McConnell said. “Just as soon as I receive confirmation from the administration that it will respect practice and precedent on recess appointments, we can get these people confirmed.”

McConnell has agreed to allow some military appointments and Michael McFaul, the ambassador to Russia, through the Senate but he will not agree to the full slate Democrats have requested unless he is assured there will be no recess appointments.

This may come as a surprise, since throughout this year Republicans have been able to use pro forma sessions to never take Congress into recess, thereby blocking recess appointments. Indeed, that was the plan for this holiday break as well.

But the implications of what McConnell is saying here are that the pro forma sessions cannot hold back recess appointments through the entire holiday break. He knows that the change in calendar year means that one session of Congress must “end” with the other beginning in January. And even if that takes one second, it’s a recess, and in that gap the President can make recess appointments. So McConnell is clearly resigned to this, and he’s trying to use some leverage – in the form of 50 nominees, physical hostages in this case – to ensure that the recess appointments don’t come.

The stories about this get this wrong, as usual. It cannot be simultaneously correct that McConnell is looking for assurances on recess appointments and recess appointments are impossible because of the pro forma sessions. That defies logic. McConnell knows his goose is cooked; he’s trying to bluff the media and the President.

The President hinted at a recess appointment for Richard Cordray to run the Consumer Financial Protection Bureau after cloture on his nomination was defeated last week. In addition, the National Labor Relations Board will cease to function if new nominees are not appointed after the end of the year, because there will be no quorum for the board. And while McConnell thinks he’s being shrewd by holding the noncontroversial nominees hostage, of course all of them could be recess-appointed by the stroke of a pen.

So the only question left is whether the President will use the power that the Senate Minority Leader clearly realizes the President holds. We may not actually know this for a while; the Senate isn’t due back until January 23, and inter-session recess appointments would have to coincide with that return. But the President could also forcibly adjourn Congress, a Constitutional right of the President (albeit one that’s never been used before). Or, he could simply recess-appoint in the three days between pro forma sessions, as the three-day rule blocking recess appointments is only advisory and not statutory.